Athletics Eligibility and Medical Vaccinations

Although immunization laws in all 50 states require vaccinations as a condition of attending school both to protect individual children and to maximize “herd immunity” against widespread outbreaks of preventable infectious diseases, all such state statutes grant exemptions for medical reasons, with 45 states also permitting faith-based non-medical exemptions (NMEs) that allow parents to opt out from having their children vaccinated if to do so would violate their religious beliefs, and 15 states providing philosophical NMEs based on moral, personal or other beliefs. Only five states – New York, California, Maine, West Virginia and Mississippi – have eliminated NMEs from their state vaccination laws.

According to the Centers for Disease Control (CDC), vaccines are the most important public health achievement of the last century, saving an estimated three million lives each year in the United States alone. In the most dramatic example of the value of immunization, as of 1967, when the worldwide smallpox vaccination campaign began, the disease still infected approximately 15 million persons a year, killing about 5 million of those afflicted, and due to the efficacy of the vaccine, the last known smallpox victim died in 1978 with the World Health Organization certifying the global eradication of the disease in 1980.

Yet per a research study released by the CDC in 2019, the percentage of children entering kindergarten in the United States who have not received any vaccinations against the 14 most common, potentially serious, and highly communicable diseases has quadrupled over the two decades since the beginning of the millennium. Of approximately 3.85 million U.S. children reaching school age in 2019, 1.3 percent had not received any of the recommended vaccinations, translating to approximately 50,000 youngsters on the first rung of the K-12 ladder lacking protection for themselves and exposing non-immune schoolmates to an enhanced risk of afflictions such as measles, chicken pox, mumps, rubella, diphtheria, whooping cough, and other infectious, pediatric diseases. Those numbers stand in stark contrast to 0.9 percent in 2010 (about 34,600 entering- kindergartners without vaccinations) and .03 percent in 2000 (approximately 11,500).

Several diseases, notably measles, chicken pox and the mumps, have made a resurgence in the United States because of the decline in vaccination rates for children, traceable according to the CDC to a combination of the state vaccination law exemptions referenced above, the efforts of anti-vaccine activists spreading misinformation about the dangers of vaccines, a lack of health insurance coverage for many low-income families, and the urban-rural disparity in vaccination rates because of shortages of pediatricians and transportation issues in many rural areas.

An issue presently confronting school and athletics administrators is the question whether state vaccination laws and exemptions applicable to attending school – a property right – also apply to students participating in high school activity programs, including sports, which have consistently been held by courts to be a privilege, not a constitutionally protected property right. In other words, at the time of a public health crisis in a community or school involving an outbreak of a highly infectious disease, can institutional leadership bar unvaccinated students from 1) attending school, a property right the deprivation of which requires extensive due process protection; and 2) participating in extracurricular activities and athletics, a privilege with minimal attendant due process protection. The following is a recent decision by a state court of appeals dealing with such a situation.

Kunkel v. Northern Kentucky Health Department

During the 2018-19 academic year, Jerome Kunkel was a senior at Assumption Academy (Walton, Kentucky), who played both basketball and baseball for the Catholic high school. On February 5, 2019, school officials contacted the Northern Kentucky Health Department (NKHD) to disclose that six cases of chicken pox (Varicella) had been reported by students at the high school and that only 18 percent of the student body at Assumption and its affiliated (and immediately adjacent) Our Lady of the Sacred Heart Elementary School had received the vaccinations mandated by Kentucky state law, with 82 percent of the students having exercised their legal right to NMEs.

As of February 21, 2019, the number of chicken pox cases at Assumption-Sacred Heart had grown to 18. Working with school administrators and learning that the school was scheduled to engage in extracurricular events and sports competitions with schools across Kentucky, Ohio and Indiana in the following weeks – fearing that such widespread geographical exposure would lead to further outbreaks at other schools and in other communities – the NKHD sent a letter to the school to be distributed to the parents of all children attending Assumption-Sacred Heart stating that for 21 days beginning with the onset of the rash associated with Varicella for the last student or staff member who became ill with the disease, all extracurricular events would be postponed or cancelled.

The principal at Assumption contacted the NKHD requesting that the boys basketball team be permitted to compete in the state tournament, despite the fact that none of the players on the team had been vaccinated against chicken pox and therefore all were presumed to be non-immune and potential carriers of the disease. The NKHD reached a compromise with Assumption, agreeing that the members of the boys team would each undergo a Varicella “titer test” (determining whether an individual is immune to the chicken pox), with the results indicating only two of the hoopsters were non-immune, one of whom was Jerome Kunkel.

Kunkel’s parents attributed their refusal to have Jerome vaccinated to their Catholic religious beliefs because the Varicella vaccine was derived from the cell lines of two fetuses that were electively aborted during the 1960s. However, according to the National Catholic Bioethics Center, the church’s 2005 ruling in its Pontifical Academy for Life statement holds that Catholics are morally permitted to use such vaccines when there’s a threat to public health – “one is morally free to use the vaccine, despite its historical association with abortion, if there is a proportionately serious reason for doing so … this is especially important for parents, who have a moral obligation to protect the life and health of their children and those around them.”

As of March 14, 2019, the outbreak had grown to 32 cases of the chicken pox at the school, representing 13 percent of the student body, and the NKHD sent a follow-up letter to Assumption parents reiterating the 21-day suspension of all extracurricular participation and also implementing the 21-day rule as an attendance restriction barring students from attending school who could not show proof they had been vaccinated against Varicella or were immune to the disease. The Kunkel lawsuit was filed that day in Boone County Circuit Court, seeking a temporary restraining order (TRO) allowing Jerome to attend school and participate with the school’s basketball team at the state tournament.

On April 1, 2019, the Boone County Circuit Court held a hearing at which all parties were allowed to express their views on the issues involved in the case. During the proceedings, the NKHD did not challenge the Kunkel family’s religious beliefs, acknowledging that they were “sincerely held” and focusing instead only on the severity of the unfolding public health crisis. On April 2, 2019, the Boone County Circuit Court issued its written decision refusing to grant the TRO, concluding that the control measures taken by the NKHD banning all unvaccinated students both from attending school and participating in extracurricular activities were “reasonable, appropriate, and necessary to control the spread of a highly infectious disease.”

The trial court also cited legal precedent from a 2015 decision by the U.S. Second Circuit Court of Appeals in Phillips v. City of New York allowing attendance restrictions for unvaccinated, non-immune students during an outbreak of Varicella in a school, a case that itself relied on a 1905 U.S. Supreme Court decision, Jacobsen v. Massachusetts, involving a person who refused to get vaccinated against smallpox.

Kunkel’s family filed an appeal and on June 26, 2019, the Kentucky Court of Appeals upheld the lower court decision. In rejecting Jerome Kunkel’s arguments that because of the actions of the NKHD, he didn’t get to play in the state tournament, a basketball all-star game, and benefit from the related exposure to college scouts, the Court of Appeals quoted the U.S. Supreme Court’s statement in the Jacobsen case that “Of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

As a footnote to the case, in early May 2019, it was widely reported by news and sports media outlets that Jerome Kunkel had contracted the chicken pox, with no mention in those reports – probably because it was not determinable with any degree of precision – whether Kunkel infected any family members, friends, classmates, teammates or members of the public with the acute and highly contagious disease.

Lee Green, J.D.

Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.